Cadmus

World Peace Through Law: Rethinking an Old Theory

Abstract

The author sets about re-thinking the old concept of “World Peace Through Law” (WPTL), meaning replacing the use of international force with the global rule of law. He traces the history of the WPTL concept back to the British legal philosopher Jeremy Bentham, whose 1789 ‘Plan for an Universal and Perpetual Peace’ proposed “a plan of general and permanent pacification for all Europe,” with troop reductions(especially in naval forces) and “a Common Court of Judicature” to resolve differences between nations. The author’s 21st century version of WPTL bears an uncanny resemblance to Bentham’s original proposal, calling for: 1) arms reductions (including abolition of nuclear weapons); 2) a four-stage comprehensive system of compulsory alternative dispute resolution(compulsory negotiation, mediation, arbitration, and adjudication); and 3) various enforcement mechanisms, including an international peace force.

The author argues that now is the time for adoption of what is a mainstream middle-of-the-road proposition (previously adopted by four past American presidents, including Theodore Roosevelt, William Howard Taft, Dwight David Eisenhower, and John F. Kennedy) that is neither “too little” (our current strategy of “collective insecurity”) nor “too much” (world government or world federalism). Instead, WPTL calls for only 1) arms reductions, not general and complete disarmament; 2) compulsory international alternative dispute resolution systems, not a global legislature; and 3) means of effective enforcement (including an international police force), not pacifism.

The whole concept of WPTL has been sadly neglected over the past half century. It is time to take a new look at the concept in this, the nuclear age.

From time immemorial, humanity has yearned for peace, but gone to war. Now, with the advent of nuclear weapons, it seems to most thoughtful people that war, at least major war, is no longer an option. Thus, the question becomes how to avoid it. One possible answer is “world peace through law,” somehow substituting the rule of law for the use of force to resolve international conflict. Many versions of this basic idea, once quite popular but now nearly forgotten, have been advanced over the years. One of the earliest proponents of the concept was British legal philosopher Jeremy Bentham, who in his 1789 Plan for an Universal and Perpetual Peace, proposed “a plan of general and permanent pacification for all Europe,” with troop reductions, especially in naval forces, and “a Common Court of Judicature” to resolve differences between nations, albeit without coercive powers.1 Undoubtedly, the “strongest” version of “world peace through law” is that of the world federalists, whose basic argument is that there are only two ways to resolve true conflict (meaning conflict that cannot be mediated) at the international level: (1) by war (no longer a good idea, since it could entail the extinction of at least our species), and (2) by law. Therefore, they say, choose law. And by “law,” world federalists mean law that is the only kind worth having, enforceable law, enforceable upon individuals, i.e., “world law”, created by a global legislature and enforced by global courts and global police, unlike the inadequate currently-existing international “law” and the weak system of UN-based “collective insecurity” that we now have.2

This article proceeds on the assumption that while the above syllogistic argument does convey an important truth, there is another possibility, that the “law” in the “world peace through law” formula need not be that of a global legislature, that there are other ways of securing world peace through law, both in the short term and in the long run.

If one takes a long view of our history as a species and as a gradually maturing international society, it becomes apparent that we are already on our way, while scarcely realizing it, to “world peace through law” through the one-step-at-a-time brick-by-brick, law-by-law, norm-by-norm accretion of a body of mere “international law” which is gradually becoming a body of genuine “world law” right before our unsuspecting eyes. And this world-law-in-the-making has been happening even during the recent administration of a U.S. government more scornful of international law and international institutions than any in U.S. history.

What in the world am I talking about? Well, first, I am talking about a vast body of international law, built up primarily over the past several centuries.* This is not to say that there were not significant developments in international law prior to this.3 One can start by looking at a mere short-list of the highlights of international law and institutions over the years, to remind ourselves of the progress that has been made, despite the serious shortcomings that remain.

MILESTONES IN INTERNATIONAL LAW

Hugo Grotius’ On the Law of War and Peace (attempts to describe what he insists on calling “a common law of nations,” albeit one that he freely admits is often not observed in the breach) 1625
Peace of Westphalia (modern system of sovereign European states; early attempt at international arbitration) 1648
Final Act of Congress of Vienna (principles for cooperative use of rivers etc.) 1815
Paris Declaration on Maritime Law (regulating maritime warfare) 1856
International Red Cross 1864
International Telecommunications Union 1865
Alabama Claims Arbitration (successful conclusion of U.S. claim against UK for permitting construction of warships for Confederacy during the Civil War) 1872
Universal Postal Union 1875
Int’l Bureau of Weights & Measures & Int’l Meteorological Org. 1878
Int’l Copyright Union 1886
First Hague Convention (against poison gas, dumdum bullets; treatment of war prisoners) 1899
Permanent Court of Arbitration 1900
Second Hague Convention (outlaws war to collect debt; accepts “principle” of compulsory arbitration, but without operative machinery) 1907
International Labor Organization 1919
International Civil Aviation Organization 1919
League of Nations [but not the U.S.] 1920
World Court [later, Int’l Court of Justice (1945)] 1921
Kellogg-Briand Pact (normative principle outlawing war, but no enforcement mechanism) 1928
Geneva Conventions on Prisoners of War 1929
Bank for International Settlements 1930
UNESCO 1942
World Bank 1944
IMF 1944
United Nations 1945
FAO (food & agriculture) 1945
Nuremberg War Crimes Trials begin 1945
UNICEF 1946
GATT (General Agreement on Tariffs & Trade) 1947
Universal Declaration of Human Rights 1948
World Health Organization 1948
Geneva Conventions on War Crimes 1949
European Coal & Steel Community 1951
European Convention for Protection of Human Rights 1953
European Economic Community (EEC, Treaty of Rome) 1957
IAEA (Int’l Atomic Energy Agency) 1957
Antarctic Treaty 1959
OECD (Organization for Economic Cooperation & Development) 1961
McCloy-Zorin Agreement (draft plan for nuclear disarmament) 1961
Limited Test Ban Treaty 1963
World Food Program 1963
UNCTAD (integrating developing countries into world economy) 1964
UNDP (development) 1965
Outer Space Treaty 1967
Treaty of Tlatelolco (first of several nuclear free zone treaties) 1967
Nuclear Non-Proliferation Treaty 1968
Vienna Convention on the Law of Treaties 1969
Seabed Arms Control Treaty 1971
Biological Weapons Convention 1972
ABM Treaty [U.S. withdrew in 2001] 1972
SALT I Interim Agreement 1972
UNEP (environment) 1972
Threshold Test Ban Treaty 1974
Int’l Covenant on Economic, Social & Cultural Rights [but not U.S.] 1977
Convention on Elimination of Discrimination Against Women [id.] 1979
Law of the Sea Convention [id; entered into force, 1994] 1982
Montreal Protocol (regarding ozone layer) 1987
Intermediate-Range Nuclear Forces Treaty 1987
Convention on the Rights of the Child [only U.S. & Somalia have not ratified the convention] 1989
UN Framework Convention on Climate Change 1992
Chemical Weapons Convention 1993
Int’l Criminal Tribunal for the Former Yugoslavia 1993
WTO (more court-like sanctions than GATT) 1994
Comprehensive Test Ban Treaty [not approved by U.S. Senate] 1996
Ottawa Landmines Treaty [but not U.S.; entered into force, 1999] 1997
Kyoto Protocol [but not U.S.; entered into force, 2005] 1997
Int’l Criminal Court [but not U.S.; entered into force, 2002] 1998
UN General Assembly “Responsibility to Protect” Resolutions 2006
Convention on Cluster Munitions [but not U.S.; entered into force, 2010] 2008

What the above partial list makes clear is that, starting from the smallest measures, up through the sweeping changes of the post-WWII years, a growing body of global law of considerable depth and breadth has gradually been accumulated., 4 And while current international law and institutions are weak and ineffective (especially in the area of global security), they have grown stronger, despite the desperate opposition and scorn of the real-politikers., 5 To take one example in the area of international trade, initially, the GATT (1947) operated only upon a consensus decision-making basis. Now, however, as of 1994 the new WTO has precisely the reverse rule: sanctions are now automatic upon a finding by the WTO tribunal in the absence of a consensus blocking them.6 Similarly, the Law of the Sea Treaty (1982) replaces conflicting power-based claims with a comprehensive rule-based framework to regulate all ocean space (70% of the globe), its uses and resources, from navigation rights to definition of territorial waters and related boundaries to fishing limits and other ocean resources regulation, all enforced via compulsory dispute settlement procedures.7 Although the Law of the Sea Convention was the result of a number of UN-sponsored conferences, the UN has no direct role in its operation, so that it is free of the P-5 veto in the Security Council. This aspect of the Convention is particularly interesting. This “Law of the Sea approach”—a functionalist approach keyed to a particular problem and neatly avoiding the constraints of the P-5 veto—could be utilized in other problem areas.8 These two examples of “stronger” international law are emblematic of the kinds of evolutionary changes that have taken place and will only continue to occur over time. And gradually, as the edifice of international law becomes more and more impressive and gains greater acceptance, philosophical debates as to the nature of international law as “law” will become increasingly moot, as we move ever closer to eventually creating a comprehensive system of international courts empowered to provide the rule of law at the global level.§


James T. Ranney: Adjunct Professor of Law, Widener Law School
* Jeremy Bentham was the first to coin the term “international law.” M.W. Janis, “Jeremy Bentham and the Fashioning of ‘International Law,’” American Journal of International Law, 78, no. 2 (1984): 405-418.
† While disavowing any “teleological view,” Judith L. Goldstein, Miles Kahler, Robert O. Keohane, & Anne-Marie Slaughter find that “[i]n many issue-areas, the world is witnessing a move to law.”
‡ Cf. Percy E. Corbett, The Growth of World Law, at 50 (1971) (the international law system “leaves off precisely at the point where law is most necessary, namely where the urge to unrestrained action is strongest”).
§ Trial of German Major War Criminals (Goering et al), International Military Tribunal (Nuremberg), Judgment and Sentence (Sept. 30 & Oct. 1, 1946) (Cmd 6964, HMSO, London), at 40: “The law of war is to be found not only in treaties, but in the customs and practices of States which gradually obtained universal recognition, and from general principles of justice applied by jurists….” Also cf. Hans Kelsen, Law and Peace in International Relations: The Oliver Wendell Holmes Lectures, 1940-1941, at 145, 149-51 (1942) (arguing that the natural evolution of law is from courts to legislatures).

1. Jeremy Bentham, Plan for an Universal and Perpetual Peace (London : Sweet and Maxwell, 1927), 12-27.
2. Joseph P. Baratta, The Politics of World Federation (Westport: Praeger, 2004) (excellent history of movement, tracing origins of idea back to at least Dante [ca. 1311], Henry IV of France [1610], William Penn [1693], Abbe de Saint-Pierre [1713], Rousseau [1761], Kant [1795], and early British and American federalists, through huge popular successes post-WWII to its near extinction in the McCarthy Era; appendix has annotated bibliography of 77 books); Christopher Hamer, A Global Parliament: Principles Of World Federalism (Oyster Bay: Oyster Bay Books, 1998); and Grenville Clark & Louis Sohn, World Peace through World Law (Cambridge: Harvard University Press, 1966). Also cf. Louis Lusky, “Four Problems in Lawmaking for Peace,” Political Science Quarterly 80, no. 3 (1965): 341-356; and Inis Claude, Swords into Plowshares: the Problems and Progress of International Organization (New York: Random House, 1971).
3. Harold J. Berman, “The Law of International Commercial Transactions (Lex Mercatoria),” Harvard International Law Review 19, no. 1 (1978): 274-277 (tracing origins of law merchant from Sea Law of Rhodes, ca. 300 B.C.). But with the evolution of the modern nation-state in the early 1600s, see Sheri Berman, “From the Sun King to Karzai: Lessons for State Building in Afghanistan,” Foreign Affairs 89, no.2 (Mar/Apr 2010): 2-9, we see the growth of international law.
4. Mary Ellen O’Connell, The Power and Purpose of International Law: Insights From the Theory & Practice of Enforcement (New York: Oxford University Press, 2008). Also compare Judith L. Goldstein, Miles Kahler, Robert O. Keohane, & Anne-Marie Slaughter, Legalization and World Politics (Cambridge: MIT Press, 2001). Philip Allott, “The Emerging Universal Legal System,” International Law Forum 3, no.1 (2001): 12-17. See also Martii Koskenniemi, The Gentle Civilizer: The Rise and Fall of International Law 1870-1960 (New York: Cambridge University Press, 2002). Julius Stone, Of Law and Nations: Between Power Politics and Human Hopes (N.Y: W.S. Hein, 1974) and Eric Posner, The Perils of Global Legalism (Chicago: University of Chicago Press, 2009).
5. Compare Nicole Deller, Arjun Makhijani & John Burroughs, eds., Rule of Power or Rule of Law? An Assessment of U.S. Policies and Actions Regarding Security-Related Treaties (New York: Apex Press, 2003); Oona Hathaway, “Why We Need International Law: Undoing the Bush Administration’s Damage,” The Nation, November 19, 2007 (remarkable internal documents show deep aversion to international law); and Thomas M. Franck, “The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium,” American Journal of International Law 100, no. 1 (2006): 88-106. Robert J. Delahunty and John C. Yoo, “Peace Through Law? The Failure of a Noble Experiment,” Michigan Law Review 106 (2008): 923-939. Cf. also Corbett, supra, at 51 (those scornful of stumbling attempts to create world law “display a lack of perspective no less real than that of the hurried idealists whose visions they deprecate.”).
6. Richard H. Steinberg, “Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints,” American Journal of International Law 98, no. 2 (2004): 247-275 and Bernhard Zangl, “Judicialization Matters! A Comparison of Dispute Settlement Under GATT and the WTO,” International Studies Quarterly 52 (2008): 825–854.
7. Louis B. Sohn, Kristen G. Juras, John E. Noyes & Erik Franckx, Law of the Sea in a Nutshell (Minnesota: West, 2010) and www.un.org/Depts/los.
8. Center for War/Peace Studies, “What Elliot Richardson Thinks,” Global Report no. 4 (1978). Elliot Richardson is interviewed by Richard Hudson, and states: “To me the Law of the Sea Conference offers the


Pages: 1 2